Unit 4.2:
How does the judicial system work?

Handouts

Scenarios

One day in jail for confessed husband killer
A woman who hacked her husband to death as he slept has been jailed for a day.
Judith Dimina Kaamazi killed Mr Joseph Ndalizu on the night of June 7, 2001, at KenGen staff quarters in Naivasha using a mattock.
‘I was a casual labourer at a flower farm in Naivasha, but when we got married, he made me stop working with a promise to provide for me,’ she told Mr Justice Luka Kimaru of Nakuru High Court.
‘This did not happen, and the situation got worse as he kept insulting me,’ she said.
‘I was the only bread winner in my family. I had a single mother who was not in a position to cater for all our needs, so when I got married, my help to them was cut short.
‘My husband would abuse me both verbally and physically, and he frustrated me,’ she told the court amid sobs.
Assistant deputy public prosecutor Patrick Gumo said on June 7 night, Mr Ndalizu went home drunk and picked a quarrel with his wife. He threw a beer bottle at her but missed the target and then went to bed, leaving her nursing bruises in the living room.
‘When the man was asleep, she crept in and hacked him twice on his head, killing him instantly,’ Mr Gumo said.
She later covered his body with two blankets and surrendered to the police the following day.
In mitigation the accused said she had been in prison with her seven-year-old child, while another aged 10 lived with her mother before she died.
Mr Justice Kimaru said the accused had been provoked and had suffered both verbal and physical abuse….
Daily Nation, 01 March 2006

 

New report exposes graft in Judiciary
Deep networks of corruption are still entrenched in the Judiciary, a new report released yesterday says.
Commissioned by the International Commission of Jurists (ICJ) with the assistance of the Finnish government, the report also decries what it terms as ‘excessive and unwarranted’ interference in the operation of the Judiciary by the Executive.
This, the report notes, is despite the much-touted ‘radical surgery’ carried out in the Judiciary in 2003.
Following the release of the Justice Aaron Ringera report, five out of nine Court of Appeal judges, 18 out of 36 High Court judges and 82 out vof 254 magistrates were implicated in corruption.
They were all subsequently issued with a two-week ultimatum to either resign or be dismissed.
But yesterday, while releasing the report at the Norfolk Hotel, Nairobi, Mr Justice George Kanyeihamba of the Supreme Court of Uganda said corruption in the administration of justice as well as in the Judiciary remains a serious impediment to the rule of law in Kenya.
Much more needed to be done to make Kenyans regain their faith in the judicial process, he said.    
Daily Nation, Friday 8 April 2005

In the light of the above two press clippings – and many more stories about the operation of the law in Kenya, to what extent do you think which the Judiciary lives up to the characteristics of an effective judicial system? Such a system can be characterised as follows:

• Fairness and impartiality: Judicial decisions are rendered on the basis of the facts of the case and according to the law, and not on the basis of favouritism, external or internal pressures, or other biases related to income, ethnicity, gender or social status;
• Soundness of decisions: Judicial decisions should reflect knowledge of the law and high professional standards;
• Accessibility: Lack of income or their gender, ethnicity or language should not prevent a person from obtaining access to the justice system, or obtaining effective defence or representation in the courts of law;
• Efficiency: Cases should be resolved or settled within a reasonable time and at a reasonable cost;
• Independence and public accountability: The Judiciary should be an independent arbiter of disputes and should not be directed by any other person or institution in its work. Judicial institutions should also be transparent and accountable to the public;
• Credibility: Citizens should have confidence that the justice system is fair and able to carry out its tasks effectively.  

 

Civil and criminal judicial procedure

	Civil judicial process	Criminal judicial process
Stages
Commencement	The process is started by a complainant known as the plaintiff, filing a plaint in court against another person who is known as the defendant, who can then either file a defence denying any wrongdoing, or admit liability for the wrongs alleged by the plaintiff.	The process is started by way of the state through the police, or a citizen arresting a person who is suspected of committing a crime, and charging him or her with a criminal offence in a court of law.
Pre-trial procedures	The pre-trial procedures include serving the other party with all documents filed in the case in the manner that is described by the law; the parties informing the court that they will proceed with the case either in person or through their lawyers (what is known as entering an appearance); and filing and hearing of preliminary applications that may be necessary, such as asking the court to stop something from being done or continuing to be done until the case is heard (injunctions).	There are various pre-trial procedures that take place after an accused person has been charged, such as the plea taking where the accused person states whether or not he or she is guilty of the criminal offence; applications to be released on cash bail (on deposit of some money), or bond (a personal promise by the accused person to appear for the hearing); if not released, the accused is kept in a remand prison until the hearing dates.
The hearing of the case	The hearing of the case is conducted by way of each party stating their case starting with the plaintiff, and each providing evidence to show that what they are stating is true (examination-in-chief). They can also question the other party on what he or she has stated (cross-examination and re-examination).	The hearing proceeds along the same lines as in the civil cases, except that once the prosecution states its case against the accused person, the magistrate or judge has to decide whether or not there are enough grounds to show that a crime has been committed, before the accused person is then asked to state his or her case in defence.
Proof of the case	The burden of proof that is necessary for a plaintiff to succeed in a civil case is on a balance of probabilities – that it is more probable than not that what the plaintiff is saying is true.	The burden of proof for the prosecution of a criminal case to be successful is beyond reasonable doubt; that is, the prosecution must not leave any doubt as to the guilt of the accused person, otherwise the accused person should be set free.
Decision by the court	If a plaintiff is successful, then the court enters judgement in his or her favour, and may order the defendant to pay a sum of money known as damages to compensate the plaintiff, or order him or her to do that which was supposed to be done in the first place (specific performance). The defendant may appeal to a higher court against the judgment, if allowed by the law.	If the prosecution proves the guilt of an accused person, then the accused person is convicted and sentenced by court. The sentence can be either imprisonment, payment of a fine (or both) probation or community service. The convicted person may appeal to a higher court against the conviction or sentence or both, if allowed by the law.

The above procedures may be different in certain types of case; for example, in civil cases raising constitutional issues, or in criminal trials for offences where the punishment is death.

Some questions:

• The judiciary literally holds the power of life and death in Kenya; but the same power that enables it to bring a criminal to justice or save an innocent person wrongly accused, can also result in a miscarriage of justice where an innocent person is sent to prison or the gallows for a crime they did not commit. What can be done to ensure that the judiciary’s immense powers are not misused either intentionally or unintentionally?
• The revelations of corruption in the judiciary contained in the Kwach Report showed how vulnerable these immense powers are to being subverted and misused; but the difficulty of lawfully bringing corrupt judges and magistrates to book also raised an age-old question: Who will judge the judges?
• One reason why the law and judicial procedure are so detailed and elaborate is to prevent miscarriages of justice because of the existence of ‘grey areas’ in the law; but what happens when powerful wealthy men use this complexity to frustrate any attempt to hold them to account for their misdeeds? Worse still, what do we do about a situation where the judiciary fails to use its powers to discipline powerful men who defy its rulings?
• The Kapenguria Trial not only serves to remind us that the judiciary can become a political tool, but also that it is a colonial construct that more or less supplanted traditional African judicial systems instead of complementing them. Is there room for revival of traditional courts and other dispute-settling mechanisms alongside the ‘modern’ judiciary? If so, in what areas?
• Mob justice is often defended or explained on the grounds of the ineffectiveness of the police and courts in bringing criminals to justice. But doesn’t it carry the risk of even worse injustices being committed?

Background Information

What is the Role of the Judicial System?

The judicial system is the system through which the judicial power of government is exercised. Judicial power means the power to decide on controversies or conflicts between the people themselves, or between the state and the people. These conflicts can be of any type that affects the rights of the people with regard to their lives, liberty or property.

The functions of a judicial system include:

• To independently and impartially uphold and interpret the Constitution and other laws, and ensure that the rule of law is followed;
• Prevent arbitrariness and unfair procedures by other branches of government and make sure they act within the law;
• Protect the rights, freedoms and property of the people, and also to protect the public interest as provided by the Constitution and other laws;
• Peacefully resolve disputes among members of society in accordance with the law.

The judicial system is provided for in the Constitution and in other laws, and these provisions identify the courts in which particular disputes will be heard, the members of the judiciary who will decide on the disputes, and the procedures that are to be followed when hearing and determining the disputes.

There are certain central characteristics of a judicial system that is able to perform its functions effectively. These are:

 

• Fairness and impartiality: Judicial decisions are rendered on the basis of the facts of the case and according to the law, and not on the basis of favouritism, external or internal pressures, or other biases related to income, ethnicity, gender or social status;
• Soundness of decisions: Judicial decisions should reflect knowledge of the law and high professional standards;
• Accessibility: Lack of income or their gender, ethnicity or language should not prevent a person from obtaining access to the justice system, or obtaining effective defence or representation in the courts of law;
• Efficiency: Cases should be resolved or settled within a reasonable time and at a reasonable cost;
• Independence and public accountability: The Judiciary should be an independent arbiter of disputes and should not be directed by any other person or institution in its work. Judicial institutions should also be transparent and accountable to the public;
• Credibility: Citizens should have confidence that the justice system is fair and able to carry out its tasks effectively.

The development of the judicial system in Kenya

The judicial system in traditional Kenyan societies emphasised the amicable resolution of conflicts through elders, traditional leaders and by means of reconciliation rituals. Persons in conflict would normally appear before a council of elders who would listen patiently to each party and try to establish the root causes of the conflict and determine the guilty party. The display of symbols, such as certain types of trees or grasses, was also used to signify that a particular meeting was a judicial session. The elders usually prescribed a solution that was intended to lead to harmony and peace. They could fine the guilty party, or order that he or she compensate the innocent party for the loss suffered or, in some cases, direct that ceremonies such as sacrifices of certain animals be conducted to facilitate the reconciliation. These judicial processes were well established in the different Kenyan communities.

During the colonial period, a new judicial system was established in Kenya through the promulgation of a number of laws in the colonial metropolis. The East Africa Order in Council of 1897, passed in Britain, established a segregated system of superior and subordinate courts in Kenya to adjudicate for the different races and classes of people who made up the Kenya population. For example, the superior courts initially had authority only over British subjects in the Kenyan protectorate; while the subordinate courts were meant to cater for Africans, both those following traditional religions and Muslims, who were allowed to continue with their traditional systems of conflict resolution. There were also concerted efforts to introduce English concepts of justice and morality into the entire judicial system, and especially in cases where African customary law applied.

 

Subordinate courts

Three types of subordinate court were established in 1897. The first was the colonial native court, which was administered by colonial administrative officers and magistrates. These courts initially had jurisdiction only over people living within fifteen miles of their location. The courts applied the Indian Penal Code and Procedure Rules, which were basically English law as applied in India, and they were allowed to hear both civil and criminal cases. They also applied Muslim or African customary law in civil cases where the parties before them were Muslims or Africans. These kinds of colonial court were later on classified as ‘first class’, ‘second class’ or ‘third class’ courts. The first class courts were the resident magistrates’ courts with jurisdiction over a whole province, while the second and third class courts were district courts. Only courts of the first class heard cases involving Europeans, and certain special procedures such as trial by jury were also used for Europeans only.

The second type of subordinate court to be established in 1897 was the Muslim native court. These courts initially had jurisdiction only over Muslims living in what was called the Coastal Strip, which at the time was part of the Sultan of Zanzibar’s territory. This was the result of an earlier agreement that had been entered into between the British and Sultan. The jurisdiction of the Muslim courts was gradually extended to other Muslims in other parts of the colony and they came to be called Kadhis’ courts. They only heard cases involving Muslim personal law.

The third type of subordinate court established in 1897 was the indigenous native court, which catered for each tribe and was presided over by tribal chiefs and elders. These types of court applied the tribe’s customary laws to resolve conflicts brought before them. They were later renamed Native Tribunals and put under the supervision of colonial administrative officers. Appeals from the Tribunals were heard by the colonial native courts. The Native Tribunals later became known as the African Courts.

Under both the Independence and current Constitution, Parliament was given powers to establish subordinate courts, and it has duly established different types of subordinate courts. These are still called subordinate courts, because appeals from their decisions are heard by the superior courts.

The first type of subordinate court currently existing is the Magistrate’s court, which operates at four levels:

• Chief Magistrates’ courts;
• Principal Magistrates’ courts;
• Resident Magistrates’ courts; and
• District Magistrates courts.

 

The different levels of courts are managed by magistrates of varying grades of seniority, starting from the District Magistrate (the junior-most level) to the Chief Magistrate (the senior-most level). The types of cases that the various grades of magistrates can hear and determine also differ, especially in terms of their geographical limits and the amounts of money involved in the cases – with the Chief Magistrates’ courts being given more powers than the other courts.

The Magistrate’s courts apply the current Kenyan civil and criminal laws, and they are also given powers to hear and determine personal cases arising under African customary law and practice. Examples of personal cases include those relating to marriage, divorce, inheritance, custody of children, pregnancy compensation and burial. Special children’s magistrates’ courts only hear and decide cases involving children under the age of 18.

The second type of the current subordinate courts established by Parliament are the Kadhis’ courts, which hear and determine personal cases where both parties are Muslims, and which apply Islamic law. They are managed by the Chief Kadhi and various Kadhis. The qualifications of both the Chief Kadhi and other Kadhis are provided for in the Constitution, which requires Kadhis to be Muslims with a good knowledge of Muslim law.

 

Superior courts

Two superior courts were first established in 1897. The first was the Court for East Africa, later known as the East African Court of Appeal, which had jurisdiction over British subjects and other foreigners living in Kenya. This court was established in each province in Kenya and it applied Indian and English laws to resolve disputes before it. Appeals from this court were heard by a higher court known as the Judicial Committee of the Privy Council, which sat in Britain. The second superior court was the Chief Native Court, which heard appeals from, and supervised the subordinate courts that we have already described.

The superior courts created by the Independence Constitution in 1963 were the Supreme Court, and a Court of Appeal of Kenya. The Supreme Court had powers to hear all civil and criminal cases over all persons in Kenya and also determine certain constitutional matters, such as issues touching on regional government and the senate. The Court of Appeal of Kenya was meant to replace the East African Court of Appeal, and appeals from this court were still to be heard by the Judicial Committee of the Privy Council. Further changes were made after 1964 when Kenya became an independent Republic, with the renaming of the Supreme Court as the High Court of Kenya, and the abolition of appeals to the Judicial Committee of the Privy Council.

Under the current Constitution there are two superior courts: the High Court and the Court of Appeal. The High Court supervises, and also hears appeals from, the subordinate courts. It can also hear any civil and criminal case arising in Kenya. The Court of Appeal hears appeals from decisions of the High Court. Judges known as Puisne Judges manage the High Court, while Judges of Appeal sit in the Court of Appeal. All the laws that apply in Kenya can be used by both the High Court and Court of Appeal when making their decisions.

Special courts
There are other special courts and judicial bodies that hear and determine certain types of disputes. These are:

• The Industrial Courts, which hear and determine disputes arising out of employment, and involving employers, employees and trade unions. Judges sit in these courts.
• Courts Martial, which try cases of offences committed by military personnel, and are set up when such cases require to be heard and decided. They are usually presided over by a lawyer.
• Tribunals, which are bodies set up to look into certain types of dispute such as rent disputes, licensing disputes, disputes between regulators and market players in areas such as insurance, capital markets, retirement benefits, etc. They are strictly speaking not judicial bodies, although they are required to take into account the law when reaching their decisions. Their membership is diverse and can include both legal and non-legal persons.

 

How well does the judicial system work in Kenya?

 

The judicial process
The judicial system in Kenya is an adversarial system. What this means is that a court will only hear and decide on a case when it is brought before the court by a party and argued by the parties who have a conflict. The courts in Kenya do not initiate the judicial process – this has to be done by the parties themselves.

Different procedures are provided for on how parties can initiate the judicial process and what needs to be done before the court can finally rule on the law or on a dispute. The procedures will differ depending on whether the dispute is criminal or civil in nature. In a criminal case, the parties are normally the state and the person accused of committing a criminal offence, although the law can allow a citizen to commence criminal proceedings against an accused person in what are known as private prosecutions. In a civil case, the parties are two civilians who have a dispute that is private to them only. The following table summarises the two judicial procedures:

	Civil judicial process	Criminal judicial process
Stages
Commencement	The process is started by a complainant known as the plaintiff, filing a plaint in court against another person who is known as the defendant, who can then either file a defence denying any wrongdoing, or admit liability for the wrongs alleged by the plaintiff.	The process is started by way of the state through the police, or a citizen arresting a person who is suspected of committing a crime, and charging him or her with a criminal offence in a court of law.
Pre-trial procedures	The pre-trial procedures include serving the other party with all documents filed in the case in the manner that is described by the law; the parties informing the court that they will proceed with the case either in person or through their lawyers (what is known as entering an appearance); and filing and hearing of preliminary applications that may be necessary, such as asking the court to stop something from being done or continuing to be done until the case is heard (injunctions).	There are various pre-trial procedures that take place after an accused person has been charged, such as the plea taking where the accused person states whether or not he or she is guilty of the criminal offence; applications to be released on cash bail (on deposit of some money), or bond (a personal promise by the accused person to appear for the hearing); if not released, the accused is kept in a remand prison until the hearing dates.
The hearing of the case	The hearing of the case is conducted by way of each party stating their case starting with the plaintiff, and each providing evidence to show that what they are stating is true (examination-in-chief). They can also question the other party on what he or she has stated (cross-examination and re-examination).	The hearing proceeds along the same lines as in the civil cases, except that once the prosecution states its case against the accused person, the magistrate or judge has to decide whether or not there are enough grounds to show that a crime has been committed, before the accused person is then asked to state his or her case in defence.
Proof of the case	The burden of proof that is necessary for a plaintiff to succeed in a civil case is on a balance of probabilities – that it is more probable than not that what the plaintiff is saying is true.	The burden of proof for the prosecution of a criminal case to be successful is beyond reasonable doubt; that is, the prosecution must not leave any doubt as to the guilt of the accused person, otherwise the accused person should be set free.
Decision by the court	If a plaintiff is successful, then the court enters judgement in his or her favour, and may order the defendant to pay a sum of money known as damages to compensate the plaintiff, or order him or her to do that which was supposed to be done in the first place (specific performance). The defendant may appeal to a higher court against the judgment, if allowed by the law.	If the prosecution proves the guilt of an accused person, then the accused person is convicted and sentenced by court. The sentence can be either imprisonment, payment of a fine (or both) probation or community service. The convicted person may appeal to a higher court against the conviction or sentence or both, if allowed by the law.

The above procedures may be different in certain types of case; for example, in civil cases raising constitutional issues, or in criminal trials for offences where the punishment is death.

Perceptions of the judicial process
Various problems have been noted with regard to the efficiency of the judicial process.

• Lack of facilities and equipment. The Report of the Committee on the Administration of Justice , normally referred to as the Kwach Report, noted that many courts in Kenya lack basic facilities such as courtrooms in which to hear cases. Where there are courtrooms, many of them are congested and dilapidated. In addition, they lack basic equipment such as computers, with many courts still relying on old typewriters (which are very slow when it comes to the processing of court documents) and on manual filing and retrieval of court files in the registries. Court facilities in Kenya are therefore not able to meet the increased demands on the judicial system. As a result, there are many delays and a serious backlog in the hearing of cases.
• Corruption, especially in the court registries and also on the part of individual judges and magistrates. This has led to the perception that justice is for sale in Kenya – and to a loss of public confidence in the judicial system. This lack of trust in the judicial system undermines the rule of law, since the system is supposed to be the one protecting the people’s rights according to the law.
• Lack of knowledge on the part of the ordinary Kenyan of the laws and procedures that are to be followed in order to enable them to take advantage of the judicial system.
• High court fees that ordinary Kenyan cannot afford – not to mention the high legal fees charged by the lawyers. As a result, many poor Kenyans are unable to benefit from the judicial system and cannot protect their rights.

 

Judicial independence
Judicial independence is the freeing of the Judiciary from prior control of its decisions, to ensure that internal or external forces do not influence the decisions that the members of the Judiciary make. There are two aspects of judicial independence:

• Decisional independence – to enable it to render impartial and objective decisions, the judiciary should be guided by the law and the law alone, and each judicial officer should have administrative independence in carrying out his or her work.
• Institutional and financial autonomy – the Judiciary should not receive instructions or be controlled by the Executive, Parliament or private sector; and it should have adequate budgetary allocation for its work, and adequate remuneration for its officers.

 

Judicial independence is the reason why judges are accorded a privileged position in terms of their appointments under the Constitution. An independent Judicial Service Commission is required to advise the President on who is to be appointed a judge. The judges also have security of tenure and financial independence. Security of tenure means that a judge cannot be removed from his or her position during a term of office, except for good cause, and according to proper procedures. Financial independence is granted to judges by their salaries being paid directly from the government account known as the Consolidated Fund, which is set up under the Constitution. If judges can be easily removed from office, or if some other body controls their salaries, then they become vulnerable to internal or external pressures in their consideration of cases.

Perceptions of judicial independence
Three main issues have been raised with regard to judicial independence:

• The Kwach Report, as well as the findings of the Anti-Corruption Judicial Committee chaired by Justice Aaron Ringera, documented widespread corruption among officials in the judicial system. The corruption takes the following forms:

 

• Inducing court officials to misplace or lose case files, delay trials, judgments and rulings;
• Making actual payments of money or providing other forms of inducements to judges and magistrates to influence their decisions.

The Judiciary has in the recent past suspended judicial officers who were identified as having been involved in unprofessional conduct. It has also developed a Judicial Code of Conduct to ensure professional and ethical conduct and judicial independence among its officers, and it is still continuing with its anti-corruption activities. The general public perception, however, is that a lot more effort needs to be put into eradicating corruption in the Judiciary .

• The efficient administration of courts and the treatment of members of the judicial system have in the past been adversely affected by the concentration of administrative responsibility in the office of the Chief Justice. Proper administration of the judicial system is important and can strengthen judicial independence and impartiality, because a judicial system that renders justice in a timely and efficient manner builds public confidence and respect for the rule of law.

 

• Inadequate remuneration and poor terms of service for judicial officers, especially for magistrates, have also contributed to the corruption in the Judiciary.

 

Judicial accountability
Judicial accountability focuses on the mechanisms by which the Judiciary, as an independent body, explains its conduct and operations. The issue of judicial accountability is a recent development, and it has arisen out of concerns that the Judiciary, because of its increased independence, may have excessive powers and that it can abuse this freedom and lose touch with the values and needs of the public. There are four mechanisms normally applied to increase judicial accountability:

• Transparent selection of judges on the basis of well-publicised criteria and evidence of application of that criteria;
• Transparency in internal procedures deriving from established rules for Judiciary budgets, use of resources, salaries, asset declarations, standards of behaviour and evaluation within the Judiciary – and also set procedures that are available for public scrutiny.
• Transparency of judicial decisions by giving the public access to records of proceedings and judgments of the courts.
• A system for registering complaints on the operations of, or behaviour of, individual members of the Judiciary

 

Perceptions of judicial accountability
Various concerns have been raised with regard to judicial accountability:

• The appointment of judges and magistrates on grounds of political influence and patronage rather than on merit – this has led to complaints about the levels of competence in the Judiciary and, specifically, that some judgments are made without regard to the evidence and the law.

 

All that the current Constitution requires for one to be appointed a Judge is that one has been an advocate of the High Court of Kenya (which is the main qualification for a person to practise as a lawyer) for a period of seven years. There are currently no requirements in the law for persons who are to be appointed as magistrates or to other judicial offices.

• The ineffectiveness of the Judicial Service Commission as presently constituted in making judicial appointments. The current Constitution provides that the Judicial Service Commission consist of the Chief Justice, who is its chairperson, the Attorney General, two judges appointed by the President, and the chairperson of the Public Service Commission. The Judicial Service Commission advises the President on who is to be appointed as a judge, except for the Chief Justice, who is directly appointed by the President. It also appoints all magistrates and other officers working in the judicial system.

 

The Judicial Service Commission should be more broad-based, consisting of members drawn from various sections of the society who are stakeholders in the judicial system. This will ensure that it is independent and effective in the exercise of its functions.

• For a long time, case reports were not being published and, although this is now being done by the National Council on Law Reporting, it is only in relation to the decisions of the Court of Appeal and High Court, and not those of subordinate courts. This is a matter of concern, since the subordinate courts are the first points of contact with the judicial system for most Kenyans. If there are any injustices in these courts, they need to be addressed immediately. This is because the aggrieved parties may not be able to afford the cost of appealing to a higher court.

 

• The Judiciary does not release statistics on its workflow and performance measures, or provide information on its activities for the public to be able to judge whether it is meeting their expectations.

 

What can be done?

A number of measures can be taken to improve the efficiency of the judicial system in Kenya:

 

Strengthening judicial independence

This can be done by targeting the key processes or institutional arrangements that are interfering with judicial decisions. These include:

The appointment process – The process should be revised to make it as transparent as possible and merit-based, and by restructuring the Judicial Service Commission as earlier proposed. For example, candidates for judicial positions should be publicised, giving their backgrounds, the selection process and its criteria. The appointments should also reflect the diversity of Kenya’s peoples, in order for the Judiciary to have the public’s acceptance and confidence.

Developing judicial capacity and promoting positive attitudes – By enhancing judicial skills and impartiality through training programmes, access to legal materials and proper interpretation and enforcement of the code of ethics. Possible interventions in this regard include continuing legal education for judicial officers, study tours, and discussion among judicial officers on ethical issues.

Security of tenure – Promotions and disciplinary procedures need to be developed and adhered to, for the security of tenure of judges and magistrates to be protected:
 

• Promotions should be transparent, with the opportunities advertised and decisions based on objective criteria. A fair performance evaluation process should be developed in consultation with the judicial officers – and this is what should primarily influence promotions.
• Well-structured disciplinary procedures protect the integrity of the judiciary and its independence, and prevent the victimisation of judges for political reasons. Judicial officers who are subjected to this disciplinary process must also be afforded the full protection of the law. They should only be removed from office for clearly specified incapacity or misconduct – which must be proved.
• Effective citizens’ complaints mechanisms should be established, but they should be designed in such a way as to ensure that unhappy litigants do not use the process to harass judges or magistrates who decide against them.

Adequate budgetary allocation – Under-funding of the Judiciary affects its independence in several ways. It means that the Judiciary is not able to offer the kind of salaries and benefits needed to attract and retain qualified candidates; it encourages corruption; it means the judiciary lacks access to basic materials such as laws, case reports, and physical working facilities such as courts and equipment for recording proceedings. It also undermines the Judiciary in the eyes of the public. What is adequate funding will, however, depend on the resources available to the government, the country’s population size – and the number of judicial officers required to effectively dispense justice to that population.

 

Improving court management and administration

This is will not only make the Judiciary more independent but also accountable. The necessary actions that are needed in this respect include:

Developing managerial capacity within the Judiciary. This will create the skills needed to maintain independence by making the judicial system less dependent on external influences, and it will provide it with the ability to address any problems that arise in its performance.

Designing appropriate administrative and managerial structures. This means effective systems of maintaining records; improved case flow management procedures to ensure there is no backlog of cases; and improved financial management procedures to ensure proper handling of court fees and fines. These improvements will enhance transparency and standardisation and thereby reduce opportunities for corruption, mishandling of documents and arbitrariness.

• Using technology as a means of achieving transparency and more efficient functioning of the judicial system. This is crucial in the areas of computerisation and establishment of information management systems, automated record-keeping and also in case-processing.

 

Access to justice

Initiatives are needed to ensure that the poor are able to access justice. Suggestions in this regard are:

 

Provision of legal aid for those who cannot afford court and legal fees.

Civic education to help the public better understand and access the justice system.

Introduction of small claims courts, where procedures are simplified, can be used without the assistance of lawyers, and are less costly.

Introduction of court-based alternative dispute resolution methods that do not require lengthy and costly litigation procedures; examples are mediation, arbitration and conciliation.

 

Notes for Facilitators

Objectives

• To understand the role of the judicial system in Kenya and highlight the central characteristics of a judicial system that enable it to perform its functions effectively;

• To trace the development of the judicial system from its genesis in colonial times to the present day and explain its structure, showing what courts handle what kind of cases, the appeals process and so on;

 

• To identify the problems with the functioning of the Judiciary that lead to perceptions that it is inefficient and to a loss of public confidence in the judicial system, such as lack of facilities and equipment, corruption, lack of knowledge on the part of ordinary Kenyans of laws and procedures and high court fees that prevent many poor Kenyans from benefiting from the judicial system and enjoying their rights;

• To understand the importance of judicial independence and accountability, how these are compromised in the prevailing system, and what can be done to ensure these and restore public confidence in the Judiciary

 

Sequence

1. The Scenarios:
Use the press clippings as a basis for asking the extent to which the Kenyan judiciary lives
up to the characteristics of an effective system:

• Fairness and impartiality: Judicial decisions are rendered on the basis of the facts of the case and according to the law, and not on the basis of favouritism, external or internal pressures, or other biases related to income, ethnicity, gender or social status;
• Soundness of decisions: Judicial decisions should reflect knowledge of the law and high professional standards;
• Accessibility: Lack of income or their gender, ethnicity or language should not prevent a person from obtaining access to the justice system, or obtaining effective defence or representation in the courts of law;
• Efficiency: Cases should be resolved or settled within a reasonable time and at a reasonable cost;
• Independence and public accountability: The Judiciary should be an independent arbiter of disputes and should not be directed by any other person or institution in its work. Judicial institutions should also be transparent and accountable to the public;

• Credibility: Citizens should have confidence that the justice system is fair and able to carry out its tasks effectively.

 

2. Sequence:

Use the table of civil and criminal procedure to emphasise why a functioning judicial system affects not just law and order but everyday economic and commercial life; then use the newspaper clippings and the questions to emphasise how important it is to reform the judicial system as well as how important a judicial system is to prevent a society from slipping into anarchy and the rule of the powerful over the weak.

Finally, take the issue of reviving traditional dispute settlement mechanisms as a separate component – a lively discussion should, if well handled, provide valuable new insights into this poorly researched and understood area.